Probus v. Illinois Cent. R. Co.

• Decision Date: 07 June 1918
• Parties: PROBUS v. ILLINOIS CENT. R. CO. [a1]
• Court: Kentucky Court of Appeals

203 S.W. 862

181 Ky. 7

PROBUS v. ILLINOIS CENT. R. CO. ^[a1]

Court of Appeals of Kentucky.

June 7, 1918

Appeal from Circuit Court, Hardin County.

Action by Cisero Probus against the Illinois Central Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Haynes Carter, of Elizabethtown, for appellant.

L. A Faurest, of Elizabethtown, Trabue, Doolan & Cox, of Louisville, M. A. Arnold, of Leitchfield, and R. V. Fletcher of Chicago, Ill., for appellee.

SAMPSON J.

Cisero Probus, a man of mature years, who had performed duty as a trackman on a railroad, was engaged in November, 1916, by appellee, Illinois Central Railroad Company, as one of a crew of men to handle steel which was being loaded and unloaded upon and along its main tracks in Hardin county. While thus engaged Probus received an injury to his foot and ankle which disabled him for several months and caused him much pain and suffering. He instituted an action against the appellee company, in the Hardin circuit court, to recover damages for his injury. In this action it is alleged that appellee company is a common carrier, hauling freight and passengers from and into the state of Kentucky and other states for hire, and this allegation is not denied. The petition alleges facts sufficient to constitute a cause of action under the Federal Employers' Liability Act. After a demurrer by the defendant company was overruled, an answer was filed traversing the charges of negligence and denying responsibility, and the second paragraph was a plea averring contributory negligence on the part of Probus. The injury occurred on the second day on which Probus worked with the gang loading the steel. A train of flat cars, to which was attached boarding cars for the accommodation of the workmen was used by the crew in taking up and distributing the steel. It appears from the evidence that previous to the injury certain steel rails had been removed from the track and stacked on the right of way near thereto, and that the foreman in charge of the train and crew had orders from the company to take up and distribute part of this steel along the track to the section foremen who were in need of steel for making repairs upon the track. According to appellant Probus' evidence, the crew would take up steel at one place and carry it along the line to a point where it was needed, and there unload such part as required for the purpose of making the track secure, or for the purpose of repairing side tracks or spur lines. At the time of the injury Probus, with the other members of the gang, was taking up steel which was stacked near the track, and loading it on a flat car to be carried to another point, but to what point is uncertain, although Probus says he had information from the foreman in charge of the work that the steel was to be used to make repairs in the main line. Two men standing on the ground at each end of the stack of rails would pull a steel rail out of the stack so that the men could stand behind it and face the car on which they were to load it, and when the foreman, who stood on the car, gave the order all of the men, acting together, would pick up a steel rail and carry it to and cast it upon the car. After they had been engaged at this particular stack of steel, handling it in this manner, for some time, Probus and others who were on the stack of steel were approaching the place where they would pick up the next rail, when the two men on the ground, who were pulling the rail out so as to allow the men to get behind it to lift up the steel, suddenly, and without warning to Probus, or the others, pulled a rail out in such way as to and it did strike Probus' foot, knocking it between two underlying rails, and, while his foot was thus placed, overturned the rail pulled out upon his ankle and foot so as to cause Probus to fall off the stack of rails with his foot thus fastened between two rails, inflicting injury to Probus' foot and ankle. This is, in brief, the way the injury happened, as detailed by Probus. Evidence of certain other employés, taken in connection with that of Probus, tends to show that the steel rails which were then being loaded were to be and were in fact afterwards distributed along the line, and again placed in the track as repairs, as and when needed; and it is therefore contended that Probus, as well as the other members of the gang, was engaged in interstate commerce, they at the time being engaged in providing material with which to repair the main track of the railroad, which was admittedly an interstate common carrier.

At the conclusion of the evidence for the plaintiff the defendant company entered a motion for peremptory instruction upon the ground that the work which Probus was, at the time of his injury, engaged in performing, did not constitute interstate commerce, and was not in furtherance or aid of interstate commerce. This motion was sustained by the trial court, and the jury instructed to prepare and return a verdict for the defendant company, which was done, and judgment accordingly entered.

Three grounds are relied upon for a reversal: (1) Error of the court in giving a peremptory instruction to the jury to find for the defendant; (2) error of the court in admitting incompetent evidence on behalf of defendant and in rejecting competent evidence by plaintiff; (3) the verdict of the jury is contrary to the law and evidence.

It will only be necessary to consider the correctness of the ruling of the court in directing a verdict for the defendant company. If he was engaged in interstate commerce, then the court erred to his prejudice in sustaining the motion of the defendant railroad company for peremptory instruction in its favor; but, if he was engaged in intrastate commerce, then the ruling of the court was correct.

One in the employ of an interstate railroad may be engaged in either interstate or...